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Distr. GENERAL A/HRC/4/26 29 January 2007 Original: ENGLISH
HUMAN RIGHTS COUNCIL Fourth session Item 2 of the provisional agenda
IMPLEMENTATION OF GENERAL ASSEMBLY RESOLUTION 60/251 OF 15 MARCH 2006 ENTITLED “HUMAN RIGHTS COUNCIL” Report of the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, Martin Scheinin Summary Section I provides a summary of the activities of the Special Rapporteur on the promotion and protection of human rights while countering terrorism undertaken since 15 December 2005. The next two sections focus on two thematic issues that are of special interest to the mandate. Section II contains an analysis of “profiling” in the context of countering terrorism. The Special Rapporteur provides an explanation of the concept of terrorist profiling and an overview of the different contexts in which law-enforcement agencies have employed terrorist-profiling practices. He assesses the compliance of so-called terrorist-profiling practices with human rights standards and sets out permissible forms of terrorist profiling and possible alternatives to the reliance on terrorist profiles. Section III examines the issue of suicide attacks as a form of terrorism. The Special Rapporteur provides a survey of existing research on the phenomenon of suicide terrorism. He addresses “shoot-to-kill” policies and other similar attempts to evade existing international standards on the use of firearms by law-enforcement officials. The conclusions and recommendations regarding terrorist profiling and responses to suicide attacks as a form of terrorism are contained in section IV.
GE.07-10507 (E) 090207
A/HRC/4/26 page 2 CONTENTS Paragraphs Introduction .............................................................................................. I. II. ACTIVITIES OF THE SPECIAL RAPPORTEUR .................... “PROFILING” IN THE CONTEXT OF COUNTERING TERRORISM .............................................................................. A. B. C. III. Introduction ......................................................................... Compliance with human rights standards ........................... Best practices and alternatives to profiling ......................... 1-4 5 - 31 32 - 62 32 - 37 38 - 58 59 - 62 63 - 82 63 - 73 74 - 78 79 - 82 83 - 97 83 - 89 90 - 97 Page 3 3 6 6 9 16 17 17 21 23 24 24 25
SUICIDE ATTACKS AS A FORM OF TERRORISM .............. A. B. C. Introduction ......................................................................... Shoot-to-kill policies ........................................................... Considerations by the Special Rapporteur ..........................
CONCLUSIONS AND RECOMMENDATIONS ...................... A. B. Profiling .............................................................................. Suicide attacks ....................................................................
8. the Special Rapporteur thanks the Government of the Republic of the Maldives for extending an invitation to undertake a country visit. In accordance with paragraph 14 (d) of resolution 2005/80. pursuant to Commission on Human Rights resolution 2005/80 and Human Rights Council decision 1/102. working groups and independent experts of the Commission on Human Rights.A/HRC/4/26 page 3 Introduction 1. the Special Rapporteur worked in close cooperation with other special rapporteurs. The Special Rapporteur plans to visit South Africa in mid-April 2007. the Special Rapporteur has proposed dates for May 2007. A study on human rights compliance while countering terrorism in Australia is contained in addendum 3 (A/HRC/4/26Add. 6. The Government of Israel has given a positive verbal response to the Special Rapporteur’s request for a visit and he hopes to undertake this visit in 2007. . He has also received a formal invitation by the Government of the United States of America to visit in the spring of 2007. He also met with various branches of the Office of the High Commissioner for Human Rights (OHCHR) to ensure complementarity with regard to the High Commissioner’s mandate on human rights in the fight against terrorism. It includes an overview of his activities since 15 December 2005 and his views on two thematic issues. The final report on the fact-finding mission that the Special Rapporteur undertook to Turkey from 16 to 23 February 2006 is contained in addendum 2 (A/HRC/4/26/Add. the Special Rapporteur has written to the Government suggesting dates for 2007 but he has yet to receive a reply. “profiling” in the context of counter terrorism and suicide attacks as a form of terrorism. the Human Rights Council and other relevant United Nations bodies. 1. The Philippines has indicated in writing that a mission may be possible in 2007 or later. At the time of the submission of this report the Special Rapporteur can indicate the following developments regarding upcoming country visits. There are also outstanding visit requests to Algeria. ACTIVITIES OF THE SPECIAL RAPPORTEUR 5. On 19 December 2005 the Special Rapporteur met in Vienna with the Terrorism Prevention Branch of the United Nations Office on Drugs and Crime and with the Action against Terrorism Unit of the Organization for Security and Cooperation in Europe. On 16 December 2005 the Special Rapporteur held a meeting with the International Committee of the Red Cross to discuss issues such as the relationship between human rights and humanitarian law. Egypt. 7. 2.3). Pakistan. Communications sent by the Special Rapporteur and the replies of Governments thereto and press releases issued under the mandate for the period 1 January to 31 December 2006 are reflected in addendum 1 to the present report (A/HRC/4/26/Add.2).1). Spain and Tunisia. Finally. special representatives. Malaysia. 3. 4. This report is submitted to the Human Rights Council by the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism.
the South African Law Reform Commission and the Department of Justice and Constitutional Development. 10.A/HRC/4/26 page 4 9. On 4 April 2006 the Special Rapporteur visited Strasbourg to meet with the Council of Europe’s Steering Committee on Human Rights (CDDH) to give a presentation on his mandate and issues arising in the fight against terrorism. He met with the Deputy Chairperson of the African Union Commission. 13. He also met with the Deputy Secretary General of the Council of Europe. such as the Department of Foreign Affairs. the Special Rapporteur has provided input and will participate in the working groups which will be tasked with the implementation of the strategy. the Commissioner for Peace and Security. the South African Police Service. including in the context of countering terrorism. The discussions related to the role and instruments of the African Union in protecting and promoting human rights while combating terrorism. On 9 March and on 26 September 2006 the Special Rapporteur met with the Permanent Representative of Egypt to the United Nations to discuss the mandate of the Special Rapporteur and to reiterate his request for an invitation for a country visit. where the draft working paper on strengthening United Nations capacity and coordination to assist States in combating terrorism was finalized. 11. The Special Rapporteur provided written input in a meeting of the CTITF held on 13 and 14 July 2006 to follow up on the Secretary-General’s report “Uniting against terrorism: recommendations for a global counter-terrorism strategy” (A/60/825) of 27 April 2006. 15. the work towards an African model law on counter-terrorism and the establishment of the African Centre for Study and Research on Terrorism. He also met with the Council of Europe’s Commissioner on Human Rights and discussed issues of concern related to his mandate and areas for possible cooperation. On 24 March 2006 the Special Rapporteur visited Strasbourg to meet with the Council of Europe’s Committee of Legal Advisers on Public International Law (CAHDI) to give a presentation on the relationship between human rights law and international law. the acting Director of the Gender Directorate. On 30 and 31 January 2006 the Special Rapporteur participated in a meeting of the United Nations Counter-Terrorism Implementation Task Force (CTITF). 12. 14. On 18 and 19 April 2006 the Special Rapporteur met with OHCHR’s regional office for South Africa and held consultations with several Government of South Africa agencies in Pretoria. Legal Counsel and the Director of the Chairperson’s Cabinet. Following the adoption on 8 September 2006 of the United Nations Global Counter-Terrorism Strategy (General Assembly resolution 60/288). . the Director of the Peace and Security Directorate. On 24 April 2006 the Special Rapporteur met with the Permanent Representatives of Tunisia and the Philippines (and again on 25 September) to reiterate his request for invitations to these countries. From 8 to 13 February 2006 the Special Rapporteur visited Addis Ababa and consulted with various officials of the African Union.
22. From 19 to 24 June 2006. 24. He also met with the EU counter-terrorism coordinator and relevant EU Commission representatives. South Africa. and held discussions with various State authorities (Prokuratura. South Africa. From 25 to 28 September 2006 the Special Rapporteur was in Geneva to present his report (E/CN. He met with representatives of the Permanent Missions of Algeria. Norway. 18. On 3 October 2006 the Special Rapporteur was in Brussels and delivered a statement to the European Parliament Temporary Committee on the alleged use of European countries by the CIA for the transport and illegal detention of prisoners. to discuss the evolution of the mandate and future perspectives. Topics of discussion were the counter-terrorism legislation in force and several cases of individuals who had been charged under the law and the impact on freedom of assembly. He also met with the African Group. the Special Rapporteur attended the thirteenth annual meeting of the special procedures mandates in Geneva. the United Kingdom of Great Britain and Northern Ireland and the United States of America. . On 16 May 2006. On 11 and 12 May 2006 the Special Rapporteur visited Astana. Finland. 20. Parliament. Israel. Furthermore. 19. Jordan. On 20 June 2006 the Special Rapporteur met with representatives of the Government of the Maldives. such as the use of intelligence before courts. Counter-Terrorism and Human Rights created at the initiative of the International Commission of Jurists to exchange information on past activities and discuss issues of common concern. Switzerland. the Special Rapporteur gave a presentation to COTER (the European Union Working Committee on Terrorism) on the methodology of identifying best practices in the field of counter-terrorism. he visited the United Nations Regional Information Centre and briefed NGO and media representatives on his mandate and his activities. 23. the definition of terrorism and control orders as a means to combat terrorism. Committee for National Security) and civil society actors.A/HRC/4/26 page 5 16. On 23 June 2006 the Special Rapporteur met with some members and the secretariat of the Eminent Jurists Panel on Terrorism. including their definitions and the procedure for proscribing organizations. 21. The meeting focused on how special procedures operate within the newly established Human Rights Council. On 22 June 2006 an informal meeting was held with representatives of a number of countries. and the Arab League. regarding issues arising in the context of his mandate. Kazakhstan. including illustrative examples. Turkey. Iceland. The Special Rapporteur also spoke at a joint parliamentary meeting between the European Parliament and national parliaments of the European Union and its accession countries on how to improve the efficiency of counter-terrorism measures while at the same time respecting fundamental rights. 17. On 21 June 2006 the Special Rapporteur addressed a delegation of the European Parliament. Pakistan. the United States of America. The discussions focused on human rights and national responses to terrorism and “extremism”. Sweden.4/2006/98) to the second session of the Human Rights Council. including Denmark.
27. so-called terrorist profiling has become an increasingly significant component of States’ counter-terrorism efforts. including in the joint identification of best practices while countering terrorism. available at the Social Science Research Network (SSRN): http://ssrn. He also met with the CTITF Chair. in recent years. and presented a joint paper on “Procedural guarantees and due process in the context of the transfer of persons in the fight against terrorism”. On 30 November to 1 December the Special Rapporteur convened an expert group meeting in Berlin to examine the promotion and protection of human rights while countering terrorism. Introduction 32. 28. On 8 December the Special Rapporteur attended the European Union Human Rights Forum in Helsinki and spoke about current human rights concerns in the fight against terrorism. The Special Rapporteur notes that. On 15 to 17 November the Special Rapporteur was represented at a Technical Workshop on Human Rights and International Cooperation in Counter-Terrorism in Liechtenstein. On 29 November the Special Rapporteur attended a meeting of the Working Group on Human Rights (COHOM) of the Council of the European Union to present his mandate and activities. On 24 to 26 October the Special Rapporteur was in New York to present his report (A/61/267) to the Third Committee of the General Assembly. 31. “PROFILING” IN THE CONTEXT OF COUNTERING TERRORISM A. The Special Rapporteur had a formal meeting with the Counter-Terrorism Committee (CTC) and met with the Counter-Terrorism Executive Directorate. He held consultations with representatives of the Ministry for Foreign Affairs of Israel. with a view to preparing a country visit in 2007. 1 . On 16 October 2006 the Special Rapporteur was represented at a Euro-Med ad hoc meeting on counter terrorism in Brussels. Moeckli. 26. He also met with the Human Rights Commissioner of the Federal Foreign Office of Germany. 30. II.com/abstract=952163. the Coordinator of the Al-Qaida and Taliban Monitoring Team. “Discriminatory profiles: law enforcement after 9/11 and 7/7” (2005) (5) European Human Rights Law Review. and a number of non-governmental organizations. These meetings focused on future cooperation. On 6 to 7 December the Special Rapporteur visited Israel to deliver a keynote address on human rights and terrorism at the Minerva Biennial Conference on Human Rights. 29. 517.A/HRC/4/26 page 6 25.1 The Daniel Moeckli. “Terrorist profiling and the importance of a proactive approach to human rights protection” (16 December 2006).
For example. profiling is. their practices may constitute disproportionate interferences with human rights. designed to identify those who may be involved in some future. a permissible means of law-enforcement activity. in principle. The German police forces collected personal records of several million persons from 2 Council of the European Union.e. i. since 11 September 2001. for example. 3 Council of the European Union. behavioural or psychological characteristics with particular offences and their use as a basis for making law-enforcement decisions. designed to identify those likely to have committed a particular criminal act and thus reflecting the evidence the investigators have gathered concerning this act. searches of personal data sets according to presumed characteristics of suspects. 34. psychological or behavioural variables. In the view of the Special Rapporteur. 35. However. initiated by the German authorities in the wake of 11 September 2001 to identify terrorist “sleepers”.A/HRC/4/26 page 7 European Union (EU) has explicitly asked its member States to cooperate with one another and with Europol (the European police office) to develop “terrorist profiles”. defined as “a set of physical. 33. It is therefore of grave concern to the Special Rapporteur that. Detailed profiles based on factors that are statistically proven to correlate with certain criminal conduct may be effective tools better to target limited law-enforcement resources. which have been identified as typical of persons involved in terrorist activities and which may have some predictive value in that respect”. Profiles can be either descriptive. 18 November 2002 (document 11858/3/02 REV 3). or as-yet-undiscovered. ethnicity. in the context of data-mining initiatives. i. . i. “Profiling” is generally defined as the systematic association of sets of physical. or they may be predictive. when law-enforcement agents use broad profiles that reflect unexamined generalizations. profiling based on stereotypical assumptions that persons of a certain “race”. Draft Council Recommendation on the development of terrorist profiles.e. An illustrative case is the so-called Rasterfahndung programme. crime. In particular. 30 March 2004 (document 7846/04).3 Terrorist profiling also occurs in less explicit forms.2 A group of experts from Europol and several EU member States has been established for this purpose. The Special Rapporteur notes that terrorist profiles have been employed. law-enforcement authorities of different States have adopted counter-terrorism practices that are based on terrorist profiles that include characteristics such as a person’s presumed “race”.e. national or ethnic origin or religion are particularly likely to commit crime may lead to practices that are incompatible with the principle of non-discrimination. “Terrorist profiling (Draft reply to written question by Sarah Ludford)”. law-enforcement agents often rely on sets of physical or behavioural characteristics when deciding whom to stop and search for counter-terrorism purposes. national origin or religion.
000 persons were identified as potential terrorist sleepers and more closely examined. 70526 (22 November 2002). 8-10. 67 Fed. Approximately 32.4 The criteria for the search included: being male. Homeland Security: Justice Department’s Project to Interview Aliens after September 11.A/HRC/4/26 page 8 public and private databases.S. 4 April 2006. paras. 77136 (16 December 2002). United Arab Emirates and Yemen (68 Fed.2 million personal data sets were collected). 6 June 2002. photographing and registration requirements for all males who are citizens of.S.bverfg. Indonesia. their ethnicity and religion. Syrian Arab Republic.9 4 See the decision of the Bundesverfassungsgericht (the Federal Constitutional Court) of Germany in decision BVerfG. Saudi Arabia.except for the Democratic People’s Republic of Korea . or were born in. Algeria. Terrorist profiling based on national or ethnic origin and religion has also been used in the context of immigration controls. Reg. 67 Fed.de/ entscheidungen/rs20060404_1bvr051802. 67 Fed.5 36.000 men eventually interviewed were Arab and/or Muslim. age 18-40. April 2003. Sudan. . Civil Liberties. 7-8. In the United States. available at http://www. Somalia.html. Lebanon. In none of these cases did the Rasterfahndung lead to the bringing of criminal charges for terrorism-related offences. Bahrain. Reg. Tunisia.6 Although the authorities did not identify these countries. Pakistan. link through birth or nationality to one of several specified countries with a predominantly Muslim population. 5. p. Reg. “Attorney General’s prepared remarks on the National Security Entry-Exit Registration System”. Eritrea. Jordan. Democratic People’s Republic of Korea. Immigration and Customs Enforcement. Oman. current or former student. 7 Migration Policy Institute. 1 BvR 518/02. Muslim denomination. almost all the 8. General Accounting Office. 67766 (6 November 2002)).htm. 41. U. male immigrants. Iraq. certain designated countries.gov/graphics/specialregistration/archive. para. Egypt. Kuwait. 5 6 Ibid. 28 (explaining that in the Federal State) of Nordrhein-Westfalen. indirectly through the choice of the targeted countries. Reg. 9 The list includes: Afghanistan.7 The National Security Entry-Exit Registration System imposed fingerprinting. 2363 (16 January 2003). had entered the United States after January 2000 and originated from countries “in which intelligence indicated that there was an Al-Qaida terrorist presence or activity”. were selected for questioning solely because they were of a certain age. Under the Voluntary Interview Program. and National Unity after September 11 (2003). “Special registration groups and procedures”. Bangladesh. See U. Libyan Arab Jamahiriya. 8 Attorney General John Ashcroft.8 all of these countries . the immigration authorities have adopted a series of policies and practices designed to counter terrorism that single out certain groups of immigrants based on their country of origin or nationality and. available at http://www.have predominantly Arab and/or Muslim populations. Qatar.ice. Iran (Islamic Republic of).. who were not suspected of any criminal activity. pp. Morocco. America’s Challenge: Domestic Security. 2001 (document GAO-03-459).
6 times more likely. A study of police practices on the Moscow metro system in 2005 found that persons of non-Slavic appearance were. Dodd. Terrorist-profiling practices raise concerns with regard to a number of human rights guarantees. V. police forces have relied on profiles based on a person’s ethnic and/or religious appearance when conducting stops. 25 January 2002. which authorizes the police in designated areas to stop and search people without having to show reasonable suspicion. It is going to be young men. “Pressing public necessity: The unconstitutionality of the Absconder Apprehension Initiative” (2005) 29 New York University Review of Law and Social Change 573. Between 2001-2002 and 2002-2003. and black people about 4. the FBI Director.com/hdocs/docs/ doj/abscndr012502mem. Open Society Justice Initiative and JURIX. Compliance with human rights standards Non-discrimination and other human rights norms 38. 33. on average. It is going to be disproportionate.13 B. In some cases. By 2003-2004. “Asian men targeted in stop and search”. the number of persons of Asian ethnicity subjected to section 44 searches rose by 302 per cent as compared to a rise of 118 per cent for white people. pp. document checks or searches for counter-terrorism purposes. data-mining initiatives based on broad terrorist profiles that include group characteristics such as religion and national origin may constitute a disproportionate and thus arbitrary interference with the right to privacy. stops and searches under section 44 of the Terrorism Act 2000. p. the Absconder Apprehension Initiative prioritized the enforcement of deportation orders against those 2 per cent of deportable persons who originate from Arab and/or Muslim countries. In the view of the Special Rapporteur. 10 Deputy Attorney General. Statistics on Race and the Criminal Justice System . The Guardian. not exclusively. 575-584. Memorandum for the INS Commissioner. which are often carried out in response to terrorist threats.findlaw. Ethnic Profiling in the Moscow Metro (2006). but it may be disproportionate when it comes to ethnic groups”). the Director of the US Marshals Service and US Attorneys re Guidance for Absconder Apprehension Initiative.8 times more likely to be stopped than Slavs.10 37. 11 12 13 . Lapp.A/HRC/4/26 page 9 Finally. available at http://news. Asian people were about 3. K. 17 August 2005 (quoting the Chief Constable of the British Transport Police as follows: “We should not waste time searching old white ladies. 21. 2004 (2005).2003 (2004).3 times more likely. 28 and ibid. p.pdf. Home Office. police forces in the Russian Federation have subjected ethnic minorities to stops and document checks. government officials have openly acknowledged that law-enforcement efforts in the counter-terrorism context focus on particular ethnic or religious groups. In the United Kingdom of Great Britain and Northern Ireland. for example.11 Accordingly. have affected ethnic minorities. to be stopped and searched under counter-terrorism legislation than white people.12 Similarly.
which makes clear that the right to non-discrimination on the grounds of race and religion can never be derogated from. 40. The Code of Conduct for Law Enforcement Officials. the European Code of Police Ethics of the Council of Europe recommends that “[t]he police shall carry out their tasks in a fair manner.15 Furthermore. the prohibition against discrimination on the grounds of race and religion is generally accepted as a peremptory norm of international law. in 14 15 16 17 BVerfG. rather than a general threat situation as it existed since 11 September 2001. 41. 1 BvR 518/02. the Special Rapporteur observes that any terrorist-profiling practices that are based on distinctions according to a person’s presumed “race”.16 This view is supported by article 4. 17 December 1979. not even in times of an officially proclaimed public emergency. ICERD.17 Similarly.14 39. national origin or religion raise the question as to their conformity with the principle of non-discrimination. paragraph 1. 2 (1) (a). the Special Rapporteur believes that the issue of discrimination deserves particular attention. described above. The guarantees of non-discrimination of articles 2 and 26 of ICCPR prohibit discrimination on grounds such as race. violates the constitutional right to privacy. article 5 (a) and (d) (i). guaranteed by article 12 of ICCPR. Code of Conduct for Law Enforcement Officials. In addition. article 53. Article 5 of ICERD explicitly prohibits racial discrimination with respect to the “right to equal treatment before […] all […] organs administering justice” and to “freedom of movement”. ethnicity. which cannot be set aside by treaty or acquiescence.A/HRC/4/26 page 10 guaranteed by article 17 of the International Covenant on Civil and Political Rights (ICCPR). including the right to non-discrimination. See Vienna Convention on the Law of Treaties. see also articles 1 (1). Discrimination on the basis of race and national or ethnic origin is also prohibited by the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD). . see note 4 above. for example. Similarly. The Court held that the preventive use of this profiling method would only be compatible with the proportionality requirement if it were shown that there was a “concrete danger” to national security or human life. the Special Rapporteur takes the view that stops and searches of persons that are based on stereotypical assumptions that certain religious or ethnic groups are more likely to pose a terrorist threat than others may amount to a disproportionate and arbitrary interference with the freedom of movement. The Special Rapporteur is concerned that profiling based on stereotypical assumptions may bolster sentiments of hostility and xenophobia in the general public towards persons of certain ethnic or religious background. These binding obligations of non-discrimination have been reinforced and supplemented by a range of other international and regional standards. national origin and religion. It is on this ground that the German Constitutional Court ruled that the Rasterfahndung initiative. guaranteed by article 9. Because of its relevance to different forms of terrorist profiling. of the ICCPR. guided. the right to privacy. provides that such officials must “maintain and uphold the human rights of all persons”. article 2 and its Commentary (a). General Assembly resolution 34/169. guaranteed by article 17 and/or the right to personal liberty.
the Inter-American Commission on Human Rights. and non-discrimination and must be subject to close judicial scrutiny”. p. implement and enforce effective measures to eliminate the phenomenon popularly known as ‘racial profiling’”.19 42.21 The European Commission against Racism and Intolerance (ECRI).116). General Policy Recommendation No. in its Report on Terrorism and Human Rights. by the principles of impartiality and non-discrimination”. proportionality.23 18 Recommendation Rec (2001)10 of the Committee of Ministers to member States on the European Code of Police Ethics. Report on Terrorism and Human Rights (OEA/Ser. article 40.20 The Special Rapporteur agrees with this view and believes that this is equally applicable to the profiling of persons based upon their religion. “presents a major risk of discrimination”.L/V/II. The Special Rapporteur notes that several international and regional human rights bodies have highlighted the risk of discrimination presented by law-enforcement efforts to counter terrorism.18 A provision specifically directed against the use of profiles that are based on racial characteristics is to be found in the Programme of Action adopted at the World Conference against Racism in 2000. document CRI (2004) 26. in the field of law-enforcement checks. 19 United Nations Committee on the Elimination of Racial Discrimination. para.A/HRC/4/26 page 11 particular. Xenophobia and Related Intolerance (A/CONF. or national or ethnic origin and that non-citizens are not subjected to racial or ethnic profiling or stereotyping”.8) para. 21. or their implementation. general recommendation 30 on discrimination against non-citizens (2004) (see HRI/GEN/1/Rev. Report of the World Conference against Racism. colour. 21 20 Inter-American Commission on Human Rights. the EU Network of independent experts on fundamental rights has expressed serious concerns about the development of terrorist profiles. 8 on combating racism while fighting terrorism. At the regional level. has cautioned that “any use of profiling or similar devices by a state must comply strictly with international principles governing necessity. 17 March 2004.189/12). in its Policy Recommendation No. Appendix. 10. Racial Discrimination. 72. ECRI. Explanatory Memorandum. para. has asked Governments to ensure that no discrimination ensues from legislation and regulations. Programme of Action. 22 23 . in purpose or effect. descent. age or birthplace. on the grounds of race. “The balance between freedom and security in the response by the European Union and its member States to the Terrorist Threats” (2003). profiling on the basis of characteristics such as nationality. 19 September 2001. 8 on combating racism while fighting terrorism. 353. 22 October 2002.22 Finally. The Committee on the Elimination of Racial Discrimination has called on States to “ensure that any measures taken in the fight against terrorism do not discriminate. the experts have cautioned. urging States “to design. EU Network of independent experts on fundamental rights.
In order to serve as a suitable and effective tool of counter-terrorism. therefore. the aim of law-enforcement practices that are based on terrorist profiling is the prevention of terrorist attacks. general comment No. are a proportionate means of achieving this aim. 13 (1990). Second. According to this jurisprudence. First.24 44. In the view of the Special Rapporteur. para. what kind of negative effects these practices may produce. the following two sub-tests are generally applicable to determine the existence of an objective and reasonable justification. para. 2) (1968) 1 EHRR (European Human Rights Reports) 252. terrorist profiles that are based on characteristics such as ethnicity. national origin and religion are regularly inaccurate and both over. The Special Rapporteur takes the view that terrorist-profiling practices that involve distinctions according to a person’s presumed “race” cannot be supported by objective and reasonable grounds. 46. 47. Human Rights Committee. second. first. 48. Test of legitimate aim and proportionality 45. as well as with that of regional bodies on the respective norms contained in regional human rights treaties. 4 (19 January 1984). para. 13.A/HRC/4/26 page 12 43. As far as distinctions according to national or ethnic origin and religion are concerned. Inter-American Court of Human Rights (Ser. Broeks v. the Special Rapporteur believes that it is important to consider. “black” and “Asian”. The Special Rapporteur finds these pronouncements consistent with the established jurisprudence of international human rights bodies interpreting the non-discrimination guarantees of the ICCPR and the ICERD. such as “white”. whether terrorist-profiling practices are a suitable and effective means of countering terrorism and. there has to be a reasonable relationship of proportionality between the difference in treatment and the legitimate aim sought to be realized. As far as the first requirement is concerned. Human Rights Committee. and the differential treatment they involve. a profile would need to be narrow enough to exclude those persons who do not present a terrorist threat and.and under-inclusive. Advisory Opinion OC-4/84. The decisive question is therefore whether terrorist-profiling practices. 57. In assessing proportionality. at the same time. inevitably involve unfounded stereotyping through a crude categorization of assumed races. para. communication No. 18: Non-discrimination (1989). because they are based on the wrongful assumption that there are different human races and. However. 10. A) No. 24 . 172/1984 (CCPR/C/OP/2). national origin or religion will only be compatible with the principle of non-discrimination if it is supported by objective and reasonable grounds. a difference in treatment on the basis of a criterion such as race. the difference in treatment must pursue a legitimate aim. broad enough to include those who do. The Netherlands. Belgian Linguistics Case (No. this constitutes a legitimate and compelling social need. Proposed Amendments to the Naturalization Provisions of the Constitution of Costa Rica. ethnicity.
Several of 25 R. most terrorist profiles use ethnic appearance and national origin as proxies for religion. national origin and religion are also under-inclusive in that they will lead law-enforcement agents to miss a range of potential terrorists who do not fit the respective profile. religious and social background of potential terrorists is concerned. namely that Muslims and persons of Middle Eastern and South Asian appearance or origin are particularly likely to be involved in terrorist activities. “The quantitative analysis of terrorism and immigration: an initial exploration” (2006). 21. ethnic. As a consequence. 31. Yet ethnicity and national origin are very poor proxies for religion. 51.S. as religious affiliation is normally not readily identifiable (and in any case easy to conceal). for example. The Stationery Office. The Special Rapporteur observes that.htm.aaiusa.28 Thus. 6 April 2005. London. the greater becomes the number of people whom the police treat as suspects. “there is not a consistent profile to help identify who may be vulnerable to radicalization”. The Special Rapporteur is also concerned that over-inclusive terrorist profiles may overwhelm the law-enforcement system. only 24 per cent of all Arab Americans are Muslims. in practice. HC 1087. The Special Rapporteur is of the view that ethnicity. Report of the Official Account of the Bombings in London on 7th July 2005. 18 Terrorism and Political Violence 503. Arab American Demographics. 26 27 House of Commons Home Affairs Committee. As a consequence. p. the Report of the Official Account of the London Bombings has concluded that. where Muslim religion is often associated with “Asian” appearance. Second. Muslims. For example. even though the vast majority of them will turn out to present no risk.26 50. important law-enforcement resources may be diverted away from more beneficial work. have of course nothing to do with terrorism. The broader the profiles. Sixth Report of Session 2004-05: Terrorism and Community Relations. terrorist-profiling practices that rely on these stereotypical characteristics affect a great number of individuals who are in no way linked to terrorism. national origin and religion are inaccurate indicators because the initial premise on which they are based. Arab American Institute. 28 . the overwhelming majority of those who are Muslims. for example. available at http://www. many of those matching these elements will not be. only half of those belonging to this ethnic group are in fact Muslims. is highly doubtful. First. the Special Rapporteur believes that profiles based on ethnicity. At the same time. 52. profiles based on ethnic appearance or national origin are over-inclusive in two respects. Brooke.25 Similarly. p.27 In the United Kingdom.A/HRC/4/26 page 13 49. A recent study of Islamist terrorists arrested or killed in Western States showed that less than half of them were born in Middle Eastern countries. Leiken and S.org/ demographics. 11 May 2006. as far the national. HC 165-I.
10.strategicstudiesinstitute. Kleine Anfrage des Abg. see note 6 above. Hahn (FDP) vom 10. for example. Crime and Security Act 2001 Review: Report.06 per cent. 88. the widespread. use of stop-and-search powers has produced hardly any results. 8. the strategy of mainly targeting immigrants of Middle Eastern descent has not produced any significant results in the form of arrests or investigative leads. Sunday Times. BVerfG. with the use of female and child suicide bombers.35 Finally. in the United States. says Met”. Terrorist groups have regularly proved their ability to adapt their strategies. General Accounting Office. Assessing the New Normal: Liberty and Security for the Post-September 11 United States.34 Similarly. p. e. 18 May 2004. Incidentally. 34 35 36 U. accordingly.120 pedestrians were stopped under section 44 (2) of the Terrorism Act 2000. 34. 7 August 2005. Anti-terrorism. para.army.33 In the United Kingdom. supra. p. 39. Drucksache 16/2042. The Special Rapporteur observes that.31 53. see note 13 above. the disproportionate targeting of ethnic minorities for stops and document checks in the Moscow metro system has proved to be ineffective in detecting and preventing serious crime. available at http://www.S. see note 4 above. para. 35. Hessischer Landtag. all of those arrested were white. Home Office.a “success” rate of 0. See. The New Republic.D. “Fair Game: Al Qaeda’s New Soldiers”. Leppard. Yet these stops led to only five arrests in connection with terrorism . Female Suicide Bombers.g.36 29 See Privy Counsellor Review Committee. note 13. intelligence-led methods. “Watch for women and child bombers. D. 6 and 16.mil/pdffiles/PUB408. to avoid the stereotype of the male terrorist as just one example.A/HRC/4/26 page 14 recent years’ high profile terrorism suspects would not have been covered by the profile used for the German Rasterfahndung. 2004 (2005). e. pp. 30 31 32 33 See. In 2003-2004. national origin and religion have proved to be largely unsuccessful. The German Rasterfahndung did not result in a single criminal charge for terrorism-related offences. Zedalis. national origin or religion are easy to evade. 26 April 2004. September 2003. p. any kind of terrorist profile based on physical characteristics can easily become self-defeating. Leiken.pdf. R.2004 betreffend Ergebnisse der Rasterfahndung und Antwort des Ministers des Innern und für Sport. the few successes achieved by the German police forces in detecting alleged Islamist terrorists were all due to traditional.32 Instead. D. 18 December 2003. as law-enforcement specialists acknowledge. Open Society Justice Initiative and JURIX.29 This shows that profiles based on ethnicity. and ethnically disproportionate.S. Strategic Studies Institute (2004).30 Thus.g. . 1 BvR 518/02. profiling practices based on ethnicity.03. Lawyers Committee for Human Rights.
58. means of countering terrorism: they affect thousands of innocent people. it has created deeper racial and ethnic tensions against the police. For the United Kingdom. 37 . without producing concrete results. as some Governments claim. The Special Rapporteur takes the view that the victimization and alienation of certain ethnic and religious groups may have significant negative implications for law-enforcement efforts. 55. House of Commons Home Affairs Committee. While anyone stopped. thus contributing to the social construction of all those who share these characteristics as inherently suspect. terrorist “sleepers” in their countries are likely to be Muslim.A/HRC/4/26 page 15 54. this would still not mean that their use is justified. The gathering of intelligence is the key to success in largely preventive law-enforcement operations. Adverse effects 56. This stigmatization may. in turn. as it involves a deep mistrust of the police. To be successful. Profiling practices based on ethnicity. and therefore a disproportionate. Moreover.”37 The lack of trust between the police and communities may be especially disastrous in the counter-terrorism context. Therefore. The available evidence suggests that profiling practices based on ethnicity. result in a feeling of alienation among the targeted groups. Written Evidence: Memorandum submitted by the Metropolitan Police Authority. The Special Rapporteur is concerned that these individual experiences may translate into negative group effects. 8 July 2004. searched or questioned by the police may feel intimidated or degraded to a certain extent. For terrorist-profiling practices entail considerable negative effects that must also be factored into the proportionality assessment. the Metropolitan Police Authority has highlighted “the huge negative impact” on community relations of the use of stop-and-search powers: “It has increased the level of distrust of our police. national origin or religion are an unsuitable and ineffective. if. national origin or religion can take a profound emotional toll on those subjected to them. counter-terrorism law-enforcement policies would have to strengthen the trust between the police and communities. even if the classifications underlying these methods did correspond to a higher risk posed by some categories of persons. The Special Rapporteur believes that profiling practices have a more serious impact than “neutral” law-enforcement methods. the encounter has a particularly humiliating effect when characteristics such as ethnicity or religion played a role in the law-enforcement officer’s decision. … it has cut off valuable sources of community information and intelligence. then it would be crucial for law-enforcement agencies to enjoy the cooperation of the respective communities. Middle Eastern and South Asian men. 57. Terrorist-profiling practices single out persons for enhanced law-enforcement attention simply because they match a set of group characteristics.
in any event. The importance of focusing on behaviour is highlighted.S. The Special Rapporteur takes the view that.S. for example. use profiles that are based on behavioural. not always forbidden. available at http://www. U.asp.com/about-racial-profiling/racial-profiling-doesnt-work. in the context of an investigation into a terrorist crime already committed. If. by the experiences of the United States Customs Service. affecting everyone equally. profiling based on behavioural patterns is significantly more efficient than reliance on ethnicity. national origin or religion. on ethnicity and gender in deciding whom to search for drugs. the Customs Service stopped using a profile that was based. characteristics. national origin or religion is justified. rather than ethnic or religious. there are reasonable grounds to assume that the suspect fits a certain descriptive profile. 61. At the same time. GAO/GGD-00-38. “Racial profiling doesn’t work”. He therefore urges States to ensure that law-enforcement authorities. . it may not always be possible for law-enforcement agencies to rely on specific intelligence or useful behavioural indicators in the context of preventive counter-terrorism efforts. Ibid. national origin and religion is. when engaging in preventive counter-terrorism efforts.. Best practices and alternatives to profiling 59. pp.A/HRC/4/26 page 16 C. behavioural analysis and intelligence. While profiles used for such efforts may include behavioural or psychological characteristics. However. Customs Service: Better Targeting of Airline Passengers for Personal Searches Could Produce Better Results (2000).40 The Special Rapporteur believes that behaviour is an equally significant indicator in the terrorism context. the Special Rapporteur reminds States that behavioural indicators must be implemented in a neutral manner and must not be used as mere proxies for ethnicity.38 Instead.39 This policy change resulted in a rise in the proportion of searches leading to the discovery of drugs of more than 300 per cent. the use of terrorist profiles that include criteria such as ethnicity. these factors can be employed to target search efforts where there is specific intelligence suggesting that someone fulfilling these characteristics is preparing a terrorist act. 5-6 and 16. Where the costs for blanket searches are deemed to be 38 U. Despite the human rights concerns outlined above. in the case of preventive counter-terrorism efforts that are not intelligence-led. the Special Rapporteur is of the view that they may not be based on stereotypical generalizations that certain ethnic or religious groups pose a greater terrorist risk than others. pp. among other factors. then the reliance on characteristics such as ethnic appearance. however. 39 40 Lamberth Consulting. Similarly. national origin or religion. the customs agents were instructed to rely on observational techniques. The situation is different. General Accounting Office. in the view of the Special Rapporteur. 10-15. 60. In the late 1990’s.lamberthconsulting. The Special Rapporteur is of the view that in such situations controls should be universal.
Prague. New York. 155-175.L. SUICIDE ATTACKS AS A FORM OF TERRORISM A. Collateral Language. 18 to 21 September 2006. Ross Glover (eds. 41 See J. United Kingdom.43 The Special Rapporteur is concerned about the increasing discrepancy between the actions taken by many States and the empirical evidence of what kind of a danger suicide attacks actually pose and which methods can indeed be defined as appropriate. Rhee. The Special Rapporteur is mindful of the duty of States to protect the life and security of all their inhabitants against terrorist acts. See. in Harald C. As opposed to profiling. pp. the targets for heightened scrutiny must be selected on a random rather than on an ethnic or religious basis. Preventive action such as profiling addressed in the previous chapter of this report is increasingly at the fore of these efforts. “Legal anthropological perspectives on international human rights and the war on terror”. and John Collins. Reetta Toivanen. both nationally and on the international level. Introduction 63. p. this is what airlines are already routinely doing. “The prosecution of terrorists in national law”.). both by the security systems of States. Suicide attacks as a form of terrorism pose a particular challenge to counter-terrorism measures that are both effective and compatible with human rights. national origin and religion may have the contrary effect of alienating communities from cooperating with law-enforcement authorities and may thus hamper effective gathering of intelligence. 2002. National Research Council. The Special Rapporteur reminds States of the crucial importance of good community relations for effective measures against terrorism. Profiling based on ethnicity. Successful counter-terrorism operations depend on the cooperation of the communities where the suspects live. III. Bristol. as well as enacted new laws which seek to increase the possibilities of State and other security personnel to act in identifying and preventing suicide attacks.A/HRC/4/26 page 17 too high. p. In fact. Scheu (ed. 2005. 200. and in the public debate on terrorism. paper presented at the Conference of the European Association for Social Anthropology. Stefanie Schmal.42 64. States in their counter-terrorism efforts have simultaneously opened new ways to interpret old laws. Measuring Racial Discrimination (2004). 42 43 . The Special Rapporteur therefore calls on States to foster community policing initiatives that build partnerships of trust between law-enforcement agencies and ethnic and other communities. “Rational and constitutional approaches to airline safety in the face of terrorist threats” (2000) 49 DePaul Law Review 847.). 870. Legal Aspects of Counter-Terrorism. Suicide attacks since 11 September 2001 have received increased attention. random searches are impossible for terrorists to evade and may thus be more effective than profiling.41 62.
Frontline. 2002. at the production of a negative psychological effect on an entire population and beyond. Rohan Gunaratna. Terror im Dienste Gottes. p.44 Politically motivated suicides may be committed as a form of protest. See online at www. innocent bystanders or members of the general population or segments of it. Yoram Schweitzer. However.M. through a high number of civilian casualties and full media coverage. an interview with Robert Pape in The American Conservative.49 44 “The logic of suicide terrorism”. in Hans Kippenberg/Tilman Seiensticker (eds. 17. The Special Rapporteur notes that language related to warfare is commonly used in the context of counter-terrorism. The International Policy Institute for Counter-Terrorism. 47 46 Martha Crenshaw. http://www. München. such a method may be lawful or in breach of international humanitarian law. See e.il/articles/articledet.htm.e.cfm?articleid=112. 49. 2004. 66. . see Terrorismus . “Der religiöse und historische Hintergrund des Selbstmordattentats im Islam”. as it frequently leads to uncertainty as to the human rights obligations of States in the context of counter-terrorism. Suicide attacks as a form of terrorism aim. to change the world order.Provokation der Macht. 67. op.org. “Suicide Terrorism in Comparative Perspective”. suicide attacks target “civilians” i. ultimately.ict.48 Even though suicide bombers may use religious elements in their rhetoric about killing. and cautions against this practice.flonnet. without endangering the lives of others. 18 July 2005. Giving up one’s own life can also happen as an intentionally chosen method of warfare between the parties to an armed conflict.). 48 49 Some authors stress however that the analysis of Al-Qaida must be understood in the framework of Islam.45 Suicide attacks as a form of terrorism are always morally inexcusable. issue 3. “The LLTE and suicide terrorism”. vol. 45 As Peter Waldmann has pointed out. Suicide attacks are used to pressure the target society to demand that its Government change its policies. however.. Schweitzer.A/HRC/4/26 page 18 65.47 It is used more generally as a method to change current power relationships and. Herzilya. This caution is necessary also in respect of suicide attacks as a specific form of terrorism. Depending on the circumstances. See. in Countering Suicide Terrorism. the main goal is usually secular and political. I.com/fl1703/17031060. the actual purpose of suicide attacks is not to commit suicide but to kill and injure the maximum number of persons..46 It has been used as a method to respond to foreign occupation or heavy military action. 21 April 2000. Suicide terrorism often has a political aim. As a form of terrorism. 1998.g. February 2000. Suicide attacks are a form of terrorism in which the perpetrator is expected to die. Tilman Seidensticker. cit. Frankfurt a. “Suicide terrorism: developments and characteristics”.
Some studies link the support for and acceptance of suicide bombings clearly with political Islamism. in suicide bombings has been the subject of much attention in recent years. language and organizational structures resemble the anti-colonial struggles. their ideologies. Mark Juergensmeyer. Mali Soibelman.50 Many Palestinian bombers consider Palestine as a country which is forced to exist in circumstances amounting to a war. Suicide bombings also often occur in the context of armed conflict. No.53 71. the greater the commitment to the Islamist 50 51 Joseph Croituru. 1/2004. Looking more carefully at the individual cases gives evidence that a typical terrorist organization resorting to suicide attacks is rather nourished by national liberation ideologies of the nineteenth century than by any Islamic tradition. in Journal of Investigative Psychology and Offender Profiling. is the targeting of civilians as victims.52 Irrespective of the justification for the suicide attacks. External suicide terrorism attempts to change dominant power relationships in the world and . 45 (5). pp. “Palestinian suicide bombers”. 2003.51 However. the Special Rapporteur notes that suicide bombings take place in a number of political and religious settings. the role of religion.M. 70. 69. they describe their actions as military defence. München. the Special Rapporteur again emphasizes that what turns a suicide attack into terrorism. Some researchers have pointed out that Islamic suicide bombers argue that their ideology and actions are based on religion.: dtv.to change the world order. 54 . Der Märtyrer als Waffe.A/HRC/4/26 page 19 68. even during an armed conflict. 2002. Hence.54 According to this research. Oxford University Press. However. 337-363. Der Tod ist ein Geschenk . Internally. See also Raid Sabbah. such as the massive attacks of 11 September 2001. and more recently Sri Lanka’s Tamil Tigers. “A comparative study of Lebanese and Palestinian perception of suicide bombing: The role of militant Islam and socio-economic status”. 52 Anne Marie Oliver and Paul Steinberg. University of California Press. Dromer. symbolism.ultimately . External terrorism by means of suicide attacks comprises attacks in which the perpetrators act outside of their home territories. 2000.Die Geschichte eines Selbstmordattentäters. Historical examples of warfare using suicide attacks as a method were the Japanese kamikaze bombers at the end of the Second World War. Terror in the Mind of God: The global rise of religious violence. suicide bombings may be used as means for the perpetrators to actively seek a political solution in their own country or region. A distinction can be made between internal and external use of suicide bombings. 53 Simon Haddad. Typical examples are Palestinian suicide bombers in Israel and the Tamil Tigers in Sri Lanka. Frankfurt a. in International Journal of Comparative Sociology. The Road to Martyrs’ Square: A journey into the world of the suicide bomber. 2005. vol. and particularly of Islam. Berkeley.
55 Other researchers point in the opposite direction. moles and martyrs”.Bomber: Why women become suicide bombers” Bulletin of the Atomic Scientists. They are active in all organizations. of suicide bombers. 529-548.61 These sleepers. The New Yorker. here at p. pp.A/HRC/4/26 page 20 world order the more likely people are to endorse suicide terrorism.g.. Julia Jusik. The imagery of persons living just like anyone else. preventive action and intelligence-gathering forms a significant part of States’ responses to terrorism.. or themselves being raped by State representatives. In the context of suicide bombings. “The opposite of right society: Witches. 61. terrorist and the discourse of evil”. Bendix and J. Die Bräute Allahs: Selbstmordattentäterinnen aus Tschetschenien. vol. and not being able to direct their own action so that it could make the feeling of humiliation disappear. recruitment of young future suicide bombers may become easy. As with other counter-terrorism measures. ed. “Sleepers. “Mohammed Atta and I: Identification. footnote 57. has been broadly projected in the debate. 33:2. Mia Bloom.Daughter. 60 Audrey Kurth Cronin. Making Sense of Suicide Missions. 13. New Scientist. who are educated and well integrated into modern society. in R. vol. Jefferson. pp. even though in some organizations their status is contentious. a fairly large proportion. 58 59 Nasra Hassan writings. 2005. 15 to 30 per cent. quoted in Mia Bloom. vol. 55 56 57 Ibid. “Mother. observing that religious beliefs can both encourage and discourage suicide attacks.58 72. 28 August 2003 p. 54-62. 57. N.57 In such circumstances. here p. see also the discussion of the concept in Marianne Gullestad. 19 November 2001. Congressional Research Service (CRS) Report for Congress. Michael Bond. when children have experienced their fathers being humiliated by military personnel.. 6 (4). Oxford University Press. 2005. 2006. 15 May 2004. “The making of a suicide bomber”. op. and who would suddenly transform into terrorists. Female Suicide Bombers. Rosemarie Skaine. 13-22. “Terrorist and suicide attacks”. e. are female. November/December 2005. 12-15.. Bendix. 61 . the issue of a “sleeper” has gained considerable attention.56 Some other researchers have explained the personal motivations behind the terrorist suicide bombings by the experience of childhood traumas. McFarland. discrimination and the formation of sleepers”. Diego Gambetta. as a perceived way out of the desperate position. In these situations religious or quasi-religious martyrdom can be experienced as a chance to reclaim family honour. eds.59 Security measures which ignored women as potential terrorists have failed dramatically. Pölten. According to available sources. cit. St. One further challenge has been that female bombers often pretend to be pregnant: this makes them to look vulnerable and helps them to pass security checks. Sabina Magliocco.Sister.C. issue 6. pp. in European Journal of Cultural Studies. while their economic status or levels of education are marginal determiners. Ethnologia Europaea. 2003.60 73.
suicide bombings are an inexpensive form of terrorism. 64 Terrorism Act 2006.L. Shoot-to-kill policies 74. neither social. As was demonstrated with respect to profiling. The human rights guarantees related to gender in the context of preventing suicide bombings ought to be a source of particular attention of States. H. See also Cronin. Wolfgang Schmidbauer elaborates on this from a psychoanalytical perspective in Der Mensch als Bombe. research is still scarce as to the underlying factors which lead individuals to resort to terrorism and particularly suicide bombings...A/HRC/4/26 page 21 as strangers and “the other” and as potential suicide bombers. the United Kingdom and the United States of America to extend the powers of policemen to take action against potential suicide bombers. suicide attackers are mostly volunteers. are subject to broad speculations as to their identity and the motives behind their actions. p. Surveillance techniques. 107-56. USA Patriot Act. cit. 6. Myanmar. The organizations behind suicide attacks could not recruit and sustain themselves without acquiescence within the larger society. national. As a fairly large proportion of perpetrators of suicide bombings are women.63 75. databanks and data collection.64 Several innocent persons have in fact been killed. and they may enjoy considerable community support. 107th Congress. of 24 October 2001 (Pub. 2003. He reiterates that the use of lethal force by law-enforcement officers must be regulated within the framework of human rights law and its strict standard of necessity. However. p. screening and profiling are some of the counter-terrorism techniques which are also motivated on the basis of preventing suicide bombings. tightened refugee and immigration laws and procedures. In addition. in that they may cause the loss of many human lives and are extremely difficult to predict and prevent. cit. Rowohlt. op. 3162). op.No. The Special Rapporteur observes that many States are trying to carve out considerable space for restrictions to internationally recognized human rights and have allowed exceptional measures in their fight against suicide bombings as a particularly difficult form of terrorism.R. 8. women have also become the focus of attention in the measures to counter these attacks. Turkey. The Special Rapporteur is concerned about legal strategies employed by many States. ethnic nor religious background present a basis for predictions of an individual being drawn into terrorism. .62 Whereas recruitment to terrorist organizations can be very aggressive. 62 63 See Kurth Cronin. B. such as Nigeria. The Special Rapporteur notes that suicide bombings present a particular challenge to counter-terrorism measures. received Royal Assent on 30 March 2006. 76.
human rights law permits the use of lethal force when it is indispensable to save human life. The Code of Conduct for Law Enforcement Officials. para. adopted by the Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders (1990): succinctly stress the limited role for lethal force in all enforcement operations. or Nigeria’s such policy against the supposed armed robbers in Umuhaia in Abia State.4/2006/53. Such invocations as “targeted killing”. 78. in several of his communications with Governments.. on the use of lethal force as an absolute last resort. summary or arbitrary executions (A/61/311. Regarding the question of proportionate use of force by law-enforcement officials.1). 45). paras. risking confusion among law-enforcement officers. It risks conveying the message that existing legal standards have been replaced with a vaguely defined licence to kill (E/CN. The Special Rapporteur on extrajudicial. paras. There is no need for new standards in respect of the use of firearms to prevent suicide terrorism. It is the view of the Special Rapporteur on extrajudicial. After the London metro bombing.65 Several Governments have created their own interpretation of what the use of utmost force means. drawn attention to the increasing reluctance to respect the right to life as a non-derogable human right. These instruments are adequate also in respect of suicide attacks as a form of terrorism. summary or arbitrary executions (E/CN.4/2006/53).A/HRC/4/26 page 22 77. see also the report to the General Assembly of the Special Rapporteur on extrajudicial. 33-45). 44-54. intentional lethal use of firearms may only be made when strictly unavoidable in order to protect life. summary or arbitrary executions that the rhetoric of “shoot-to-kill” should never be used. and the Basic Principles on the Use of Force and Firearms by Law Enforcement Officials. and only “when strictly unavoidable in order to protect life” (see A/HRC/4/20/Add.officially sanctioned .66 As noted in 2006 by the Special Rapporteur on extrajudicial. see also the report of the Special Rapporteur on extrajudicial. adopted by General Assembly resolution 34/169. The Government of Myanmar was reminded that “shoot-on-sight policies” are a deep and enduring threat to human rights-based law-enforcement approaches and that law-enforcement officials should “as far as possible apply non-violent means” before resorting to the use of force and firearms. paras.” Regarding shoot-to-kill policies. In his communication with Nigeria. while avoiding the genuinely difficult challenges that are posed by the relevant threat (ibid. endangering innocent persons and rationalizing mistakes. summary or arbitrary executions.approach to countering terrorism. The rhetoric of shoot-to-kill serves only to displace clear legal standards with a vaguely defined licence to kill. this Special Rapporteur stressed that the resulting emphasis should be on proportionality. . 66 See Myanmar’s supposed use of a shoot-on-sight policy in Kayin State against the opposition. Principle 9: “In any event. 65 Basic Principles on the Use of Force and Firearms by Law Enforcement Officials. summary or arbitrary executions has. the British police shot down an innocent person and reported it as a regrettable security measure error. 45 and 48). or “shoot-to-kill” are used in order to demarcate a new .
Random House. See “Combating terrorism through culture”. The situations in which Governments fear attacks. 68 69 . These reactions must be considered as questionable under international human rights law. note 57. Suicide bombings appear to be more politically and socio-economically motivated than religiously or ethnically motivated. 2005 and “The strategic logic of suicide terrorism”. Research suggests that a typical suicide terrorist does not resemble a murderer or a religious cult member.69 81. profiling practices based on religion. outsized surveillance of public places. 10689. New York. nationality or ethnicity. See Pape. Terrorist groupings will continue to find recruits as long as they can offer marginalized individuals an illusion of a way out of their desperate situation. The available evidence suggests that restrictive asylum and immigration laws. American Political Science Review. Upon review of existing research. Considerations by the Special Rapporteur 79. recommendation 1687 (2004) (Parliamentary Assembly Doc. The response was that young people must be equipped with means of playing an active role in democratic life and in the exercise of their rights and responsibilities in the society (paragraph 12 v (e) of the recommendation). but may also misdirect efforts to prevent suicide attacks.to men and to women. Profiling of potential suicide bombers on the basis of stereotypical images of marginalized and fanatic persons prone to manipulation creates a risk of discrimination. 97. text messages (SMS) and e-mails are inapt and not productive and thus easily disproportionate means of countering terrorism. the Special Rapporteur finds a lack of accurate information on the phenomenon of suicide terrorism. op. See Bloom. 30 September 2005). Dying to Win. See also Mia Bloom. 67 Robert Pape has collected 462 profiles of suicide bombers since the 1980s.. has prompted reactions which clearly do not fulfil the criteria of proportionality. There is a need for Governments to carefully assess both the human rights implications and the effectiveness of their measures to prevent suicide bombings. but is similar to an individual who is politically conscious and could join a grass-roots movement in order to advance something he or she believes in. Both the countries concerned and other Governments engaged in development cooperation need to enhance the role of women and children. in Pape. “Devising a theory of suicide terror”. addressing their needs and protecting and promoting their human rights: “The best way to fight the war on terror is to make the terrorist organizations less appealing . Dying to Kill. cit. increased military presence.A/HRC/4/26 page 23 C.”68 Other means for looking for political and social change have to be made available by the countries concerned and through a human rights-based approach to development. surveillance of telephones.67 80. 343-361. The Council of Europe Committee of Ministers instructed its Committee of Experts for the “European Year of Citizenship through Education” (CAHCIT) to discuss how human rights education could contribute to international action against terrorism.
This data is not . political exclusion. The Special Rapporteur calls on States to ensure that the use of terrorist-profiling practices by law-enforcement agencies is clearly documented and monitored. Thus. law-enforcement officers should be required to record the stops and searches they carry out for counter-terrorism purposes. 84. Universal or random checks are non-discriminatory and at the same time impossible for terrorists to evade. socio-economic marginalization. national origin and/or religion involves differential treatment of comparable groups of people. but they also entail considerable negative consequences that may render these measures counterproductive in the fight against terrorism. that is. national origin and religion may only be used in very limited circumstances: namely. dehumanization of victims of terrorism in all its forms and manifestations. 86. and lack of good governance. Terrorist-profiling practices that are based on “race” are incompatible with human rights. The United Nations Global Counter-Terrorism Strategy adopted by the General Assembly in its resolution 60/288 of 8 September 2006 includes the following list of conditions conducive to the spread of terrorism: prolonged unresolved conflicts. Profiling based on ethnicity. lack of rule of law and violations of human rights. including the outcomes of the stops. IV. Furthermore. The Special Rapporteur recommends either universal or random security checks as preferred alternatives. ethnic. 87. Such differential treatment is only compatible with the principle of non-discrimination if it is a proportionate means of countering terrorism. 85. To the extent that States are to rely on counter-terrorism efforts based on profiling. CONCLUSIONS AND RECOMMENDATIONS A. The Special Rapporteur recommends that States establish clear and strict standards as to what factors law-enforcement agents may or may not employ for their search efforts in the counter-terrorism context. national origin and/or religion regularly fail to meet this demanding proportionality requirement: not only are they unsuitable and ineffective means of identifying potential terrorists. The strategy calls for action to combat these conditions while it makes clear that none of these conditions can excuse or justify terrorism. Profiling practices based on ethnicity. the right to liberty or the right to privacy .regardless of the criteria on which they are based . The Special Rapporteur echoes these statements and underlines the need to address the conditions mentioned also in order to prevent suicide terrorism. for descriptive profiles or where there is specific intelligence suggesting that someone fulfilling these characteristics is preparing a terrorist act. These guidelines should make clear that criteria such as ethnicity. national and religious discrimination. the Special Rapporteur recommends they be based on individual conduct. and hence more effective than measures based on profiling. these standards should make clear that any terrorist-profiling practices that involve interference with the freedom of movement. Profiling 83.A/HRC/4/26 page 24 82. behaviour rather than ethnic or religious characteristics. instead of measures based on profiling.must strictly comply with the principle of proportionality.
Further. the Special Rapporteur reiterates his recommendation to apply either universal or random security checks. instead of measures based on profiling. Combined with shoot-to-kill policies or other forms of relaxing the standards related to the use of firearms. . The Special Rapporteur calls on States to develop and implement a system of training of law-enforcement officials that includes clear instructions as to what factors they may legitimately employ for terrorist profiles as well as a substantial training component on human rights and non-discrimination. including when committed in the context of countering terrorism. The Special Rapporteur urges States to establish systems of transparent and independent oversight of law-enforcement agencies to monitor and ensure compliance of counter-terrorism practices with human rights standards and operational guidelines. also in the context of preventing suicide attacks. The Special Rapporteur stresses that the counter-terrorism measures need to be continuously and carefully evaluated in order to ensure that they do not breach human rights. Factors such as ethnicity or religion may be included in these records but only subject to safeguards such as collecting this data from the persons concerned and separately from the original interference. 88. Suicide attacks as a specific form of terrorism pose significant challenges to counter-terrorism measures that are at the same time effective and compatible with human rights. Further. 89. 91.A/HRC/4/26 page 25 only crucial in ensuring an effective independent supervision of the counter-terrorism practices employed by law-enforcement agencies but may also be helpful for the internal analysis of the efficiency of these practices. and in this way ensure that human rights guide counter-terrorism measures and not vice versa. Intelligence agencies need urgently to address the complex cultural and socio-economic issues around suicide attacks and terrorism in general. including private security agencies. such training of law-enforcement agents should make clear that profiling based on stereotypical generalizations that certain ethnic or religious groups pose a greater terrorist risk than others is not only impermissible but also ineffective and even counterproductive. The Special Rapporteur recommends scrupulous adherence to and systematic training in existing international standards on the use of firearms by law-enforcement officials. State responses to the risk of suicide attacks demonstrate in a dramatic way the risks inherent in “profiling”. B. 92. Suicide attacks 90. 93. in the context of preventing suicide terrorism. special attention should be paid to the treatment of women and especially pregnant women and their security and integrity in counter-terrorism measures. States should develop adequate training for all law-enforcement personnel. “profiling” can have lethal consequences for totally innocent individuals. States must also provide effective means of holding law-enforcement agents accountable for any violations of human rights. Importantly. as there is a risk that women and especially pregnant women may become targeted by a new wave of counter-terrorism measures.
96. 97. The Special Rapporteur also notes that scientific research on explaining the phenomenon of suicide terrorism is unsatisfactory. More resources should be invested in research on both the conditions conducive to the spread of suicide bombings as well as methods employed by States and other actors to combat this form of terrorism. 95.A/HRC/4/26 page 26 94. Israel and Sri Lanka. e. The Special Rapporteur encourages the attempts by non-governmental organizations that are involved in narrowing the gap between groups that may be tempted to resort to terrorism and majority populations. ----- .g. the Special Rapporteur calls upon States to develop their methods of combating the conditions conducive of suicide bombings. Finally. This evidently includes measures to ensure that the human rights of all persons are respected. The Special Rapporteur urges States to engage in global peacebuilding efforts and raise awareness among their populations about existing human rights standards and legitimate methods to react to human rights violations. These efforts include widespread human rights education to all parts of the populations in their territories. without discrimination. in Afghanistan.
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